Background

Automatic dialing devices are used extensively for telemarketing purposes and also by various commercial and non-commercial organizations to communicate with employees, students, customers or others who have consented to have themselves contacted in this fashion. The communication itself may be either by a pre-recorded message or by an individual. Automatic dialing devices were first regulated by the adoption of Public Utilities Code Section 2871 et al. many years ago in response to concerns over telemarketing abuses and to public safety concerns due to automatic dialing devices with automated messages being capable of preventing disconnection by the called party, thereby preventing the called party from subsequently securing a dial tone. (Ch. 877, Stats. 1978.) A penalty provision was added in 1987. (Ch. 732, Stats. 1987.)

This new legislation, AB 870 was, according to bill analyses prepared at various stages of its movement through the legislative process, intended to address the added problems of "hang up calls" which are the product of "predictive dialers." Predictive dialers are automatic dialing devices that make calls ahead of a live human interface based on how long it is anticipated to be before the live human interface is able to go on the line. The device's operation assumes a certain percentage of calls will be unanswered or answered by answering machines. When a number is automatically dialed, but answered prior to the human interface being available, a "hang up" call is produced. The called party does not know if the source of the "hang up" was an overactive automatic dialer, a wrongly dialed number realized as soon as the caller hears the person answering or someone with criminal intent dialing to find homes which do not answer their telephone. This latter concern was extensively noted in the legislative analyses.

AB 870 was introduced to address these various concerns. While its text establishes a prohibition on automatic dialers making a connection "for which no person, acting as an agent or telemarketer, is available for the person called" (Pub. Util. C. § 2875.5 (a), the legislation also directs the Commission to "establish an acceptable error rate for telephone connections made in violation of subdivision (a)" (Id. § 2875.5 (b). A copy of the legislation is attached to this Rulemaking as Appendix A.

Both the effective date for the dialer prohibitions and the date by which the "acceptable error rate" must be adopted are July 1, 2002.